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Tuesday, 10 April 2012

Intellectual Property Rights for Books Explained

This is a long post. I do apologise, but even when
summarised, book rights are a complex topic. I have simplified as far as
possible.

What are intellectual
property rights?

When you write something, anything, as long as it’s
original, you automatically own the copyright. It belongs to you. You don’t
need to fill in any forms or register anything. The simple act of creation
makes you the owner. You can use it, re-use it or change it however you please.

So what happens when
you sell a story?

A story is not a product, like a loaf of bread. When you
sell it, you do not pass over the physical item so the buyer now has it instead
of the seller.When it comes to intellectual property, you don’t actually
own the hard copy story or the storage media on which the digital files are
kept (well, you might, but that’s ownership of the paper or electronic media,
not the story).

What you own when you own a story is the intellectual property
in the story. It’s an idea. We lawyers like to call it intangible property –
that is, you can’t pick it up or touch it. What you actually own has no
physical existence of its own.

So when you sell a story, what you’re really doing is
‘licensing’ (or allowing) someone else to use your story. You can put
limitations on how they can use it and for what purpose. ‘Ownership’ of the
story still resides with you and you can continue to use it, subject to the
rights you have sold.

For those of you who know anything about property, it’s
analogous to an easement – if you own a piece of land, it’s yours to do with as
you please. If there is an easement over that property, you can still use the
property – subject to the rights of the easement that belong to someone else,
such as a right to cross your land. In this case you can do anything you like
with your land, except block that right of access.

You can do anything you like with your story, as long as you
don’t infringe the rights you have granted to someone else. So what rights
might you grant to someone else?

FNASR – First North American Serial Rights

When you sell FNASR you are licensing the right to be the
first to publish the material in North America, but only once. If this is the
only licence you’ve granted, all other rights remain with you. You can,
obviously, only sell FNASR once, but you can also sell Reprint Rights,
Anthology Rights, First British Rights, First European Rights and First
Australian Rights. If the publication that bought FNASR is print only, you can
also sell First Electronic Rights. However, I suggest you might want to consider keeping this for last as,
once published electronically, it may discourage potential purchasers of other
rights.

First Rights

The right to be the first to publish a piece. It can be
limited geographically or by medium. You can sell many first rights as long as
they don’t overlap.

First World English

The right to be first to publish the work in the entire
English speaking world. These rights encompass FNASR, First British, First
Canadian, First Australian and any other English speaking country, so if you
sell First World English you can’t sell these rights separately.

You can also sell first rights in other languages (sometimes
called Translation Rights).

First Electronic Rights or First World Electronic Rights

The right to be the first to publish on the internet, by
email, downloadable file (e-book) or programme, on CD etc. A variation is
Electronic Publishing Rights in the English Language, which is the same as
First World English but limited to electronic media. When you sell FNASR it does
not automatically include First Electronic Rights. This must be separately and
explicitly negotiated.

Sometimes a distinction is made between publishing on the
internet and via other electronic media, but this is not always the case.

If you publish something on your blog, you generally can’t
sell First Electronic Rights.

One-time Rights

A right to publish your work once and once only, but not
necessarily first. Someone else may have already published the piece.

Reprint Rights, or Second Serial Rights

Offered when the work has already been printed once, it
gives a publication the right to reprint the piece. Note that self-published
material or work posted to a blog or website is considered published, so you
can’t sell First Rights for such work. You can sell Reprint Rights, but usually
the payment is lower.

Nonexclusive Reprint Rights gives you the ability to sell
Reprint Rights to more than one publication (including simultaneously).

Anthology Rights

The right to publish the work in a collection. This is often
a subcategory of reprint rights as anthologies frequently buy reprint material.
It’s not always a reprint right, although generally there are more lucrative markets
for first rights. Of course, there is an exception to every rule. Terry
Goodkind’s Debt of Bones first appeared in an anthology and was subsequently
reprinted as a stand alone novella.

Excerpt Rights

The right to use excerpts of your work e.g. to be used in a
standard testing programme.

Small portions of a work can usually be quoted under the
‘fair use’ policy, which allows someone to quote a work as long as they use proper
attribution (i.e. attribute the work to its author). The rules of fair use vary
from country to country though, so excerpt rights may be desirable when someone
wants to quote significant portions of a text.

Archival Rights

The right to archive or make works available on the
internet. In short, it means the piece will be kept on file and accessible long
after its publication – like an archived blog post. Beware a contract that
requires you to sell archival rights! An archived piece is considered to still
be ‘in print. This makes it difficult to sell other rights for an archived
piece. You should try to limit any archival rights you sell to a limited time,
otherwise the piece will never be ‘out of print’, severely limiting your
ability to sell it again.

All Rights

If you sell all the rights in your work, you can never again
use the work in its current form. To resell the material, you would need to
create a substantially different version. You can still take the characters and
reuse them in another story, because the all rights holder does not own the characters,
just the story in which they appeared.

You should also be aware that the all rights holder can also
license your work to third parties. You have essentially made the all rights
holder the ‘owner’ of the work in the absolute sense in which you were the
owner prior to transferring all your rights. Anything you could have done,
prior to selling all rights, the all rights holder can do, include selling all
the above listed types of rights.

You do retain a nominal (or moral) right to have the work
attributed to you. So the all rights holder can legally do what they like with
the work, but they cannot claim credit for authoring the work.

Moral Rights or Work for Hire

Like all rights, except you do not even retain nominal
rights. This means even a substantial revision of the work could be a no-no and
you can’t use the characters elsewhere. In many jurisdictions, the author of a
work has ‘moral rights’, but under work-for-hire agreements you will be
required to sign a moral rights release. From a practical perspective, essentially
you never really owned the copyright. Copyright instead vests in your employer
or the person hiring you. This is common scenario for professional services
firms e.g. employed architects creating intellectual property which vests in
the architectural firm rather than the individual architect.

Exclusive vs.
Nonexclusive Rights

Exclusive rights means the piece must not appear elsewhere
while they hold rights to the piece. Exclusive rights usually have a time limit
such as one year. It would be very unwise to sell unlimited exclusive rights,
as it would prevent you from selling other rights! After the expiration of the
exclusivity period, the piece may be printed elsewhere.

Nonexclusive means the piece can be printed in two places at
once, as long as both publications only hold nonexclusive rights. You can see
if your piece is published on your website, or you have granted archival rights
to someone, you may not be able to grant exclusive rights so long as the piece
remains published in those formats.

The "nonexclusive right to display, copy, publish,
distribute, transmit and sell digital reproductions" means you are
allowing your material to be sold elsewhere, by someone else. You may not be
paid for any of these, depending on the nature of your agreement e.g., a
nonexclusive, royalty-free right has no payment attached.

You can continue to
sell other rights to your own work, but be aware the original purchaser may also
licence your piece to fee-based databases or other content sources without ever
reimbursing you.

Fanfiction - Case
Study

Suppose you write a story using characters from your
favourite role-playing game, book or movie.

Obviously this isn’t desirable, but
many of us do this in our early days when we are still starting out writing. Later
we may decide some of that material is salvageable and want to reuse it. So who
owns what intellectual property? Here are a few variations:

Original storyline using characters from a book or game –
you own the plotline, but you don’t own the characters. To sell this, you would
need to change the characters;

Storyline derived from the game using characters from the
book or game – bad idea. Go write something of your own!

Storyline derived from the book or game using original
characters – you won’t be able to sell that story without infringing the book
or game owner’s intellectual property, but you can take the characters and
re-use them in an original plotline. Note that if you use the names of
characters from that other work, but your characters are not actually true to
the characters in that other work, the character is yours but the name is not.
You could change the names and re-use the characters. However, if the character
is properly the property of the owner of the other work, merely changing the
names won’t save you;

Original plotline using original characters – the only way
this would be tied to the book or game would be if you had used names from the book or
game, either characters or places. If we assume you have used those names, but
the characters are not true to the descriptions in the game, you can change the
name and away you go.

Essentially, you can use the parts that belong to you. You
can reuse them or modify them at will without infringing any intellectual
property rights, because you hold those rights, and therefore you can decide
what to do with it. You can’t use or borrow any intellectual property belonging
to someone else without a licence to do so.

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Author’s Note: This post is designed to provide a factual summary
of the different types of intellectual property rights relating to books, but
does not purport to be an exhaustive list, nor is it a substitute for legal
advice. If in doubt about the rights you are signing away in a contract, always
seek the advice of a qualified lawyer.

Very helpful piece. It's always good to remember that you're not really selling the writing; you're selling the privilege of publishing it somewhere/somehow. Now, if only more publishers remembered that it is a privilege...

Absolutely, it's an abstract concept that is rarely well understood - usually because it's not often explained. It's one of those silly little things we lawyers like to play around with. Publishers, like any large corporation, can be guilty of bullying 'because they can'.

You would need a licence from the owner of the intellectual property in those characters. In most cases, you would be expected to pay a royalty IF such a licence was granted, but I don't think many authors would licence their work in this way. You'd need to contact the copyright holder to discuss a licence.

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Stabbylove

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Stabbylove is helping a writer set his manuscript on fire and then helping him rewrite it. Because it was that bad. And I can't lie. Out of love.

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